Opposition parties should force feds to strengthen whistleblower protections with private member’s bill, says watchdog
This article features Government Accountability Project and was originally published here.
Canada’s political parties have yet to show they are “serious” about reforming the country’s whistleblower laws to strengthen and expand protections, and are likely to miss their best shot at forcing the government to act, says a watchdog.
The House Government Operations Committee, also known as OGGO, unanimously moved to reissue a 2017 report late last month on “strengthening” whistleblower protections by amending the Public Servants Disclosure Act in a bid to force the government to respond.
While the governing party bears much of the responsibility for the lack of movement on this issue, opposition parties, over the years, have not exhausted all avenues for pressuring the government, said Duff Conacher, co-founder of Democracy Watch, noting that a private member’s bill has yet to be brought forward.
“If they were serious, though, they could force a bill as well on this. We had minority governments from 2004 to 2011,” he said referring to the years during which the Martin Liberals and later, the Harper Conservatives, presided over a minority Parliament, “And we had lots of complaints by opposition parties during those times, but no serious moves to actually clean up politics in any way.”
Canada’s legislative framework to protect whistleblowers in the public service was enacted in 2005.
Mr. Conacher said opposition parties could have worked then, and now, with the Liberals in a minority position, to draft and jointly sponsor a private member’s bill and shepherd it through the House. They may face some resistance in the Senate, which prioritizes government legislation, he acknowledged, but said “it’d be pretty outrageous” for it to “block something that’s cleaning up federal politics.”
“Why are they waiting? Since 2019, they could have introduced bills and passed them. So, unfortunately, I think a lot of the opposition parties love to play gotcha politics and complain because it makes the ruling party look bad,” he added.
The 2017 report called on the majority Liberal government to institute better protections for whistleblowers in part by reversing the burden of proof, as it currently falls on the whistleblower “to demonstrate in court that he or she was effectively the victim of reprisals,” clarifying and expanding what constitutes reprisal, as most complaints were not being investigated by the integrity commissioner because they didn’t qualify as such, among other recommendations. The minister in charge of the file at the time, Scott Brison, responded to the report pledging to take steps “to implement improvements to the administration and operation of the internal disclosure process and the protection from acts of reprisal against public servants.” But the response stopped short of promising comprehensive legislation.
NDP MP Matthew Green (Hamilton Centre, Ont.), a member of OGGO and his party’s public service critic, acknowledged that opposition parties have a “short runway” for pushing for reforms, because of the pandemic and the prospect of an election some time this year.
“My intention is to work with folks inside of our caucus, to come up with a legislative response to this. The challenges, as you know, we kind of have a bit of a short runway,” he said. “This is something that I’m working on, but hasn’t been prioritized—at least as of yet—as an opposition motion.”
Mr. Green was first elected as an MP in 2019, and said he couldn’t speak to why there weren’t any legislative efforts in years past.
Liberal MP Francis Drouin (Glengarry-Prescott-Russell, Ont.), who also sits on the Government Ops Committee, said that a private member’s bill isn’t the “most efficient process,” noting its movement through the chambers tends to “be extremely slow.”
“I wouldn’t put my bets against, or my hopes towards having somebody put a private member’s bill to support that,” Mr. Drouin said, adding that, depending on what the changes proposed are, he “wouldn’t necessarily be opposed” to this route.
At the same time, he said, senior public servants should be making an effort to foster a workplace culture in which dissent is welcome, and not let things “get to a point where we have to rely on an act to disclose anything.”
“Regardless of whether or not we change the law, it’s hard to protect somebody’s identity through that particular process,” he said, referring to how public servants have the option of lodging a complaint with the federal public service integrity commissioner, but it comes with a level of risk and exposure.
Given that Ottawa is a relatively “small town,” he added, it’s easy to trace the source of complaint.
Asked whether he thinks it’s possible for opposition parties to band together to mount a legislative response, Mr. Green suggested it’s unlikely, noting there’s bound to be disagreement over its scope. The report, for example, does not contend with how, or whether, to expand protections to whistleblowers in the private sector or government contractors. That would require legislation separate from the act governing public servants.
“I don’t think we’re going to find consensus on it at all,” said Mr. Green of protections for both the public and private sector. “[It’s] not clear that Conservatives are interested in having the same kind of transparency and accountability in the private sector, as there is in the public sector. And I have no idea where Liberals stand on this issue.”
Mr. Drouin said he hasn’t “heard enough testimony about that to make an informed opinion,” but also said he understands the value of extending protections.
According to HuffPost Canada, Prime Minister Justin Trudeau (Papineau, Que.) declined to comment when pressed whether his government would seek to make improvements to the laws, only saying that “they play an extremely important role in flagging how government can do better.”
Media as last resort for whistleblowers
Conservative MP Kelly McCauley (Edmonton West, Alta.) was not available for an interview. In an email response, Mr. McCauley said that the report the committee unanimously agreed to re-table “proposes numerous ways to strengthen safeguards for whistleblowers who come forward to expose things like corruption, abuse of power and the misuse of public funds,” arguing that the scope of the problem has come into sharp focus with the string of sexual-misconduct allegations levelled against senior military officers that was reported in the media.
He accused the government of undertaking a “coordinated campaign to threaten and silence a sexual misconduct whistleblower.”
That part of the statement echoed one the party had issued earlier, attributed in part to Conservative defence critic James Bezan (Selkirk-Interlake-Eastman, Man.) in response to a Global News report that Lt.-Cmdr. Raymond Trotter, who alerted the government to allegations of sexual misconduct against Admiral Art McDonald, received two threatening phone calls, including from someone claiming to be with the military. In both instances, the numbers were blocked. Admiral McDonald has voluntarily stepped aside as Canada’s chief of defence staff, the highest-ranking position in the military, while he is investigated.
Defence Minister Harjit Sajjan’s (Vancouver South, B.C.) office told CBC News that “any insinuation that our government made threatening comments is utterly false,” noting that they were not aware of the caller’s identity until it was reported in the media.
“This should never happen and could have been avoided had the recommendations been taken seriously,” he said. “The Conservative Party is committed to improving Canada’s whistleblower laws. This policy was part of our 2019 platform and will be further developed as we continue drafting our upcoming platform.”
The legislative gaps in Canada’s whistleblower protections, compared to many of its peer nations, were brought into sharp focus with the release of a recent report from the Government Accountability Project in the U.S. and the International Bar Association that found that Canada has the weakest laws to protect whistleblowers. It tied for last place with Norway and Poland among the 62 countries the report ranked. The European Union, which has a directive requiring all member countries to have reporting mechanisms for disclosure of wrongdoing across both private and public institutions, the United States, and Australia tied for first. (The EU’s deadline for complying with the directive is by the end of this year.)
The report noted that, of the 358 complaints submitted to the commissioner between 2005 and January 2020, only eight whistleblowers “representing six controversies were allowed” to bring complaints of reprisals before the Public Servants Disclosure Protection Tribunal. Of those that reached that stage, only two have resulted in tribunal decisions. Those proceedings have to be approved by the commissioner.
In the absence of stronger protections, Mr. Green said many would-be whistleblowers have limited options for going public with allegations of wrongdoing and forcing a reckoning within government, with the media “being the No.1 protection.”
“Until they actually name and shame the government, nothing happens,” he said. “We’ve watched that happen … with the governor general, which is a great example, where people reported on these feelings of hostility and reprisal. And it’s only in going public—knowing that they’re going to lose their jobs and last resort—that gives them any kind of protection.”
Ex-employees at Rideau Hall have not launched a lawsuit against the institution or the government over allegations that they endured harassment and experienced a toxic workplace culture at the hands of former governor general Julie Payette and her chief aide Assunta di Lorenzo, but are reportedly mulling their legal options. Former and current employees brought their complaints to CBC, the public broadcaster, which prompted the government to hire a firm to conduct an independent review of Rideau Hall. Though the allegations have not been tested in court, the report detailing workplace abuse appeared to be enough to make Ms. Payette’s tenure untenable. Ms. Payette resigned shortly after the report was completed, but said she had welcomed the review and noted in her parting statement “we all experience things differently.”
“In a functioning Western democratic society, you would think that we would have more in place to protect people,” he added. “The truth is, we don’t.”